A 'bad faith' rule

April 17, 1991|By The New York Times

SEVENTY-SEVEN years ago the U.S. Supreme Court began excluding illegally seized evidence from criminal trials. It reasoned wisely that the Constitution's ban on unreasonable searches would be meaningless if federal agents could profit by such illegal conduct.

The exclusionary rule, later expanded to state court cases, has been a first line of defense for citizen privacy against unlawful police intrusions. But now the Bush administration wants to abolish the rule or at least riddle it with exceptions. Its latest attempt takes the form of a proposed loophole in the administration's regressive crime bill.

The high court itself has allowed a so-called "good faith" exception whereby evidence seized under a technically faulty search warrant might be used at trial because police or agents honestly believed the warrant was valid. That emboldened the Justice Department to argue for a similar exception where an officer doesn't even try to get a warrant a request that the courts and Congress have not yet granted.

Now the department proposes in its crime bill a "firearms" exception. It would let illegally seized weapons be used in federal trials for violent or serious drug crimes, even if the officers hadn't a scintilla of good-faith belief in the legality of their gun seizures. Attorney General Dick Thornburgh calls it a firearms "inclusionary" rule. A better name would be a "bad-faith exception" to the exclusionary rule.

Thornburgh argues the bill provides a strong deterrent against misconduct by federal agents in the form of a new Justice Department review board operating under regulations Thornburgh would write that supposedly would discipline errant agents. He suggests, in fact, that such a disciplinary board is more apt to deter agents' wrongdoing than is an exclusionary rule that simply excludes the fruits of illegal searches without disciplining the agents responsible.

But it's fallacious that a new, untried Justice Department bureaucracy is a substitute for the exclusionary rule's deterrent effect against unlawful entries, searches and seizures. Rare indeed is any instance of official discipline against an officer whose illegal activity solved a crime.

The exclusionary rule has proved its value over the years. By enforcing the Fourth Amendment's requirement for searches based not on an officer's whim but rather on objective reasons and evidence of suspected criminality, the rule has elevated police conduct over the generations.

Yes, the rule has sometimes spared a criminal caught through tainted evidence. But more important, it has safeguarded law-abiding citizens from overreaching police authority. Congress need not carve out any more exceptions, and certainly not for bad-faith searches, to this salutary rule.